Opinion
2910329.
September 18, 1992. Rehearing Denied October 30, 1992. Certiorari Denied January 22, 1993 Alabama Supreme Court 1920225.
Appeal from Washington Circuit Court; J. Richmond Pearson, Judge.
Rocco J. Leo of Newman, Miller, Leo O'Neal, Birmingham, for appellant.
Michael Onderdonk and E. Tatum Turner of Turner, Onderdonk, Kimbrough Howell, P.A., Chatom, for appellee.
This is a workmen's compensation case.
Following an ore tenus proceeding, the trial court found the employee to be permanently and totally disabled, unable to be gainfully employed or to be retained for gainful employment, and awarded benefits accordingly.
The employer argues on appeal that the trial court erred in finding that venue was proper in Washington County and in finding that the employee was permanently and totally disabled.
After a thorough review of the record, we find that this case is due to be affirmed on the authority of Article XII, § 232, of the Alabama Constitution, § 6-3-7, Code 1975, and Ex parte Joiner, 486 So.2d 402, 403 (Ala. 1986), as to the issue of venue; and Ex parte Eastwood Foods Inc., 575 So.2d 91 (Ala. 1991), as to the issue of permanent total disability.
AFFIRMED.
THIGPEN, J., concurs.
RUSSELL, J., concurs specially.
The employer argues in its brief that the trial court had no basis for awarding compensation because the court, in its final order, made no finding of the employee's loss of ability to earn. However, I would point out here that the requirement that the trial court make an express finding regarding the loss of ability to earn obtains only in cases of nonscheduled permanent partial disability. See, e.g., Cook v. Munn, 521 So.2d 1341 (Ala.Civ.App. 1988). This is so because permanent partial disabilities are compensable according to the employee's loss of earning ability. Pursuant to Ala. Code 1975, § 25-5-57(a)(3)g., an employee found to be permanently partially disabled is entitled to recover two-thirds of the difference between his average weekly earnings at the time of his injury and the amount he is able to earn in his partially disabled condition. No such calculation based on the percentage of loss in earning ability is made in cases of permanent total disability. See § 25-5-57(a)(4)a. I might maintain, however, that because permanent total disability is defined in § 25-5-57(a)(4)d. as an injury or impairment that "permanently and totally incapacitates the employee from working at and being retrained for gainful employment," a determination by the trial court that an employee is permanently totally disabled is also a finding regarding the employee's loss of ability to earn.